United States of America v. Frank J. Masiarczyk, Jr

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-7492
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FRANK J. MASIARCZYK, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Northen
District to West Virginia, at Clarksburg. Irene M. Keeley, Chief
District Judge. (CR-97-39, CA-02-29-1)
Submitted: March 21, 2003 Decided: April 1, 2003
Before WIDENER, NIEMEYER, and MICHAEL, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Frank J. Masiarczyk, Jr., Appellant Pro Se. Sharon L. Potter,
OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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PER CURIAM:
Frank J. Masiarczyk, Jr., seeks to appeal the district court’s
order denying relief on his motion filed under 28 U.S.C. § 2255
(2000). An appeal may not be taken to this court from the final
order in a motion under § 2255 unless a circuit justice or judge
issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)
(2000). A certificate of appealability will not issue for claims
addressed by a district court on the merits absent “a substantial
showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2) (2000). As to claims dismissed by a district court
solely on procedural grounds, a certificate of appealability will
not issue unless the petitioner can demonstrate both “(1) ‘that
jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right’ and
(2) ‘that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.’” Rose v.
Lee, 252 F. 3d 676, 684 (4th Cir. 2001) (quoting Slack v. McDaniel,
529 U.S. 473, 484 (2000)). We have independently reviewed the
record and conclude Masiarczyk has not made the requisite showing.
See Miller-El v. Cockrell, U.S. , 123 S. Ct. 1029, 1039-40
(2003). Accordingly, we deny a certificate of appealability and
dismiss the appeal. See 28 U.S.C. § 2253(c) (2000). We dispense
with oral argument because the facts and legal contentions are

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adequately presented in the materials before the court and argument
would not aid the decisional process.
DISMISSED

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